Unified Development Ordinance

Sec. 9.2.2. Active Stormwater Control Measures

Sec. 9.2.2. Active Stormwater Control Measures aaron.sheppard… Wed, 05/24/2023 - 08:59
  1. Exemptions
    Subject to the additional runoff controls required in Sec. 9.2.2.E.3 and the impervious surface limitations and other regulations of subsection A.4 below, the following are exempt from the active stormwater control measures required by Sec. 9.2.2:
    1. Grandfathered Lots
      1. Defined
        Any lot which was either recorded prior to May 1, 2001 (the first application of the Stormwater Management Ordinance) or lawfully recorded later as part of a subdivision approved prior to May 1, 2001. Such grandfathering shall apply only to compliance with this Article.
      2. Use Standards
        1. A grandfathered lot of one acre or less, including grandfathered lots that are recombined with other grandfathered lots, used for any detached house or tiny house used for single-unit living or any attached house, tiny house or two unit townhouse development used for two- unit living, including accessory uses and is not part of a larger common plan of development approved after May1, 2001.
        2. A grandfathered lot of greater than one acre, including lots that are recombined with other grandfathered lots, used for any detached house used for single-unit living or any attached house used for two- unit living, including accessory uses that is not part of a larger common plan of development approved after May 1, 2001 and with less than 5% built-upon area coverage in development or expansion of existing development.
        3. A grandfathered lot of one-half acre or less that has not been altered to be larger than one-half acre in size, used for any other lawful use requiring a site plan and is not part of a larger common plan of development approved after May 1, 2001.
    2. Subdivided Lots
      1. Defined
        A lot created by a subdivision approved after May 1, 2001.
      2. Use Standard
        1. Any detached house or tiny house used for single-unit living or any attached house used, tiny house or two unit townhouse development used for two-unit living, including their accessory uses, situated on a subdivided lot that was part of a subdivision of one acre or less in aggregate size, including subdivided lots that are recombined with other similar subdivided lots and are not part of a larger common plan of development approved after May 1, 2001.
        2. Any other lawful use requiring a site plan situated on a subdivided lot that was part of a subdivision of one-half acre or less in aggregate size and is not part of a larger common plan of development approved after May 1, 2001.
    3. Other Exemptions
      1. Existing development or redevelopment shall be exempt from the provisions of this Article.
      2. Substitution of built-upon area when all the standards of Sec. 10.3.4.E are met.
      3. Substitution of built-upon area with approved pervious surfaces.
      4. Except as otherwise allowed in 15A NCAC 02B .0711(4)(f) and .0712, agricultural activities are not exempt from Article 9.2.
    4. Impervious Surfaces Limitations and Other Regulations
      1. Lots exempted by subsections A.1 or A.2 above shall be subject to Sec. 9.2.2 et seq. when the applicable maximum impervious surface area of the lot exceeds:
        Zoning District Maximum Percentage of Impervious Surface Coverage
        R-1 20%
        R-2 25%
        R-4 38%
        R-6 51%
        R-10 and all other base zoning districts 65%

        Where the lot is part of a cluster unit development or townhouse development or planned development approved prior to May 1, 2001, the imputed acreage of the lot shall be calculated by combining the individual lot area with the pro rata lot portion of 85% of the common open space shown on recorded plats of the development.

        Notwithstanding the impervious surface limitations of this subsection, any lot with either an existing detached house used for single-unit living or an existing attached house used for two-unit living shall be entitled to a one-time 400 square foot increase of impervious surface area without providing the additional stormwater control measures required by this subsection. This one-time exemption shall only be allowed if the qualifying structure (i) existed prior to the application of this ordinance, and (ii) the qualifying structure exists when the one- time exemption is applied to the property. However, the exemption once used shall remain with the property even if the qualifying structure is later demolished, voluntarily or involuntarily, from the property. This exemption, if not used, shall be inapplicable if the qualifying structure is voluntarily demolished from the property.
        Editor’s Note: This ordinance was first applied on November 27, 2016.
      2. The impervious surface limitations in this subsection may be exceeded if:
        1. It is demonstrated to the City that (with or without measures) the post-development volume of stormwater leaving the site is equal to or less than the volume of stormwater for the zoning district maximum percentage of impervious surface coverage allowed under subsection a. during the 90th percentile storm. For lots where the existing impervious surface area already exceeds the zoning district maximum percentage of impervious surface coverage limitations listed in subsection a. above, the post-development volume must be equal to or less than the volume of stormwater for the 90th percentile storm for the existing conditions; or
        2. It is demonstrated to the City that (with or without measures) the flood level difference between the pre-development and post-development conditions for the 2-, 10-, 25-, 50- and 100-year storm events is equal to or less than 0.04 foot rise.
      3. For any property owner installing any measure to comply with subsection b.1 or b.2 above, the following additional requirements shall apply:
        1. The property owner must submit an annual inspection report to the Stormwater Management Division of the Engineering Services Department. The inspection report shall contain all of the following:
          1. a) The name and address of the property owner;
          2. b) A statement that an inspection was made of all required stormwater control facilities and/or required open space area;
          3. c) The date of the inspection;
          4. d) A statement that all inspected stormwater control facilities and/or open space areas are performing properly and are in compliance with the approved stormwater control plan, the applicable maintenance manual required by Sec. 9.2.2.D.2 and the Raleigh Stormwater Management Manual. No sampling of pollutant loading is required as part of the inspection;
          5. e) Current photographs of the stormwater control facilities and/or open space areas;
          6. f) The original signature of the owner;
          7. g) All inspection reports shall be on forms supplied by the City beginning from the date of the as-built certification under Sec. 9.2.2.D.3 and each year thereafter on the anniversary date of the certification.
        2. On lots with measures, prior to issuance of a building permit, or recordation of a subdivision plat, whichever first shall occur, the property owner shall deed an access easement and temporary construction easement to the benefit of the City of Raleigh. The easements shall be in the form of a deed that the property owner records in the County in which the property is located. A copy of this recorded deed shall be provided to the Development Services Department.
  2. Nitrogen Reduction
    1. General Requirements
      1. Any new development or expansion of existing development shall not contribute a nitrogen export load exceeding 3.6 pounds per acre per year.
      2. The nitrogen loading standards in this Article are supplemental to, not replacements for, stormwater standards otherwise required by federal, state or local law, including without limitation any riparian buffer requirements applicable to the location of the development.
      3. The project area used for nutrient calculation and stormwater requirements shall be the site area less any existing built-upon area.
      4. The project density used for determining stormwater requirements shall be the amount of the built-upon area subject to this Article at project completion divided by the project area.
      5. A project with existing development may use the calculation method in Sec. 9.2.2.B.1.d. or shall have the option of calculating project density as the total built-upon area for the site divided by the total site area.
      6. The developer shall determine the nitrogen load and loading rate generated from the project area without stormwater control measures and determine the needed nitrogen load reduction to meet nutrient targets by using the approved accounting tool.
      7. Stormwater control measures shall be designed to control and treat the volume of runoff generated from all built-upon area by one inch of rainfall or equivalent runoff volume.
      8. Stormwater runoff from off-site areas and existing development shall not be required to be treated in the stormwater control measure. Runoff from off-site areas or existing development that is not bypassed shall be included in the sizing of the on-site stormwater control measure at its full built-out potential.
      9. When new built-upon area is added to existing development or existing development is replaced with new built-upon area, only the area of net increase shall be subject to this Article.
      10. Compliance with stormwater control master plan must include the installation within the development of all stormwater control measures shown on the stormwater control master plan, payment of fees in lieu of installation, when allowed by the City and payment of any applicable drainage fees.
      11. Stormwater control measures shown on the stormwater control master plan for a new development or expansion of existing development that are demonstrated to control stormwater on a runoff volume basis will be deemed to meet the nitrogen export load requirement, provided that the post-development volume of stormwater leaving the site is equal to or less than the pre-development volume of stormwater leaving the site based on the 90th percentile storm. For the purpose of meeting this requirement for new development sites, the pre-development land cover must be assumed to be forested for the entire development site. For expansion of existing development, any built-upon area added as part of the expansion of existing development must be assumed to be forested in the pre- development condition. In any case, output from appropriate Nutrient Sensitive Waters methodology shall be provided to the City for purposes of recordkeeping and reporting.
    2. Methods to Meet Nutrient Control Requirements
      Projects subject to this Article shall meet nitrogen loading targets through a combination of the following methods:
      1. Projects may reduce export of nitrogen through any combination of stormwater control measures treating runoff on the site, in an approved off-site regional stormwater control measure, or through the acquisition of permanent nutrient off-set credits. The development shall calculate the nitrogen reduction provided by these controls using the approved accounting tool.
        1. Projects with less than or equal to 24% built-upon area may meet nutrient target rates entirely by nutrient off-sets.
        2. Projects with greater than 24% built-upon area shall provide onsite stormwater treatment or shall use dedicated offsite regional stormwater control measures for stormwater treatment covering multiple otherwise unrelated projects. Stormwater control measures shall be designed to control and treat volume of runoff generated from all built-upon area by one inch of rainfall or equivalent runoff volume in one or more primary stormwater control measure. Nutrient reduction needs not achieved following treatment requirements can be covered with nutrient off-sets.
      2. Proposed development undertaken by a local government solely as a public road expansion or public sidewalk project, or proposed development subject to the jurisdiction of the Surface Transportation Board, may meet nitrogen reduction needs for the project entirely through the use of permanent nutrient off-set credits pursuant to the Nutrient Offset Credit Trading Rule, 15A NCAC 02B .0703.
    3. Nutrient Off-set Credits
      The nitrogen export load limitations for a development may be off-set through a payment made to the North Carolina Riparian Buffer Restoration Fund or private mitigation bank. The payment shall be based on the latest fee adopted by the State and shall meet the following requirements.
      1. For subdivisions with an approved stormwater control plan, all payments shall be made prior to issuance of a land disturbance permit. Where no land disturbance permit is required, fees shall be due prior to recording of the plat. For all other developments, payments shall be paid to the North Carolina Riparian Buffer Restoration Fund prior to the issuance of applicable development permits.
      2. Excess permanent nutrient off-set credits acquired beyond what is required for the development shall not be applied to any other development. Stormwater Control Permits
  3. Stormwater Control Permits
    1. No development, expansion of existing development or the placement built-upon area, may occur on a site without an issued stormwater control permit from the City.
    2. No stormwater control permit may be approved until a stormwater control plan is first approved by the City in accordance with Sec. 9.2.2.D.
    3. No stormwater control permit may be issued except in strict conformity with the provisions of this Article, the Raleigh Stormwater Management Design Manual.
    4. No stormwater control permit may be issued until the boundaries of any watercourse buffer, riparian surface water buffer or transitional protective yard in a -MPOD, -UWPOD, -FWPOD or -SWPOD or CM District and permanently protected undisturbed open space areas which are adjacent to or encompass a work site are clearly and accurately demarcated by a protective fence in the field. Protection measures must be field verified by a Professional Land Surveyor.
    5. The stormwater control permit shall govern the design, installation, and construction of stormwater management and control practices on the site, including stormwater control measures and elements of the site design for stormwater management other than stormwater control measures.
  4. Stormwater Control Plans
    1. General Requirements
      1. Stormwater control plans must be prepared by a qualified registered North Carolina professional engineer, surveyor, soil scientist or landscape architect. The engineer, surveyor, soil scientist or landscape architect shall perform services only in their area of competence and shall verify that the design of all stormwater control measures and practices meet the submittal requirements for complete applications, that the designs and plans are sufficient to comply with applicable standards and policies found in adopted documents per Sec. 9.2.1.B., and that the design and plans ensure compliance with this Article.
      2. Stormwater control plans shall be submitted by the landowner, a lessee or person holding an option or contract to purchase or lease land, or an agent of the landowner.
      3. All parts of a stormwater control plan, including data calculation, design and installation of stormwater control measures and devices shall be in compliance with the Raleigh Stormwater Control and Watercourse Buffer Manual.
      4. Stormwater control plans must show how nitrogen reduction and stormwater runoff control requirements are being met and how watercourse buffers are being protected.
      5. A surety equal to 125% of the cost of construction of a stormwater device shall be paid to the City prior to permit issuance. If the amount of built-upon area for the bonded area exceeds 15%, the City may cash the surety.
    2. Maintenance Manual and Budget
      1. The stormwater control plan must be accompanied by a stormwater operations maintenance manual and budget.
      2. Prior to either grading any portion of the development or submitting construction drawing plans of any applicable stormwater control facility to the City, whichever event first occurs, a stormwater operations maintenance and budget shall be submitted to Engineering Service.
      3. The maintenance manual shall contain a narrative describing each installed measure and device and its design specifications.
      4. The maintenance manual shall describe which lots are served by each device.
      5. The maintenance manual shall indicate for each installed measure and device what operation and maintenance actions are needed and what specific quantitative criteria will be used to determine when these actions will be taken. The area considered shall include the stormwater conveyance system, perimeter of the device, inlet(s), pretreatment measures, main treatment area, outlet, vegetation and discharge point.
      6. The maintenance manual must indicate the steps that will be taken to restore a measure or device to the design specifications if a failure occurs.
      7. The maintenance manual must contain a statement about the expected repair life of each stormwater control facility and a replacement schedule derived by dividing the initial construction cost of each stormwater control facility by the expected life of that stormwater control facility.
      8. The maintenance manual shall require the owner to maintain, repair and, if necessary, reconstruct the stormwater control measure(s), and shall state the terms, conditions, and schedule of maintenance for the stormwater control measure(s).
      9. The maintenance manual shall be signed by the owner and notarized. The owner shall keep maintenance records and these shall be available upon the request of the City.
      10. The budget shall include annual costs such as routine maintenance, periodic sediment removal and replenishment of rip-rap, insurance premiums associated with the stormwater control facilities, taxes levied against the stormwater control facilities, mowing and reseeding, replacing vegetation as necessary and required inspections.
    3. As-Built Plans and Certification
      Stormwater control plans must be followed by as-built plans certified under seal, that the stormwater control measures and devices and their installation are in compliance with the Raleigh Stormwater Management Design Manual and the City- approved or modified stormwater control plan. No certificate of compliance or occupancy may be issued by the City without approved as-built plans, except where multiple units are served by the stormwater control measure(s), in which case the City may elect to withhold a percentage of permits or certificates of occupancy until as-built plans are submitted and approved by the City. At a minimum, the as-built plans must contain the following information:
      1. The name and address of the land owner;
      2. The final design specifications for all stormwater control measures and practices;
      3. The field location, size, depth, and planted vegetation (when applicable) of all stormwater control measures and devices, as installed;
      4. The recorded book and page number of the lot of each require stormwater control facility and required open space area;
      5. A statement that all inspected stormwater control facilities and open space areas are in compliance with the approved stormwater control plan, the applicable maintenance manual required and the Raleigh Stormwater Management Design Manual; and
      6. The original signature and seal of the engineer, surveyor or landscape architect.
  5. Stormwater Runoff Controls
    1. Runoff Limitation
      1. After May 1, 2001, the peak stormwater runoff leaving any site for the two-year and 10-year storms shall be no greater at every point of discharge for post-development conditions than pre-development conditions. The same methodologies used to calculate stormwater runoff must be used for both pre-development and post-development conditions.
      2. For any denuded area on sites between 5 and 15 acres in size the peak stormwater runoff leaving the site at each discharge point for the two year storm and 10-year storm shall be no greater during construction than for pre-development conditions. For any land disturbing activity on sites, greater than 15 acres in size the peak stormwater runoff leaving the site at each discharge point for the two-year storm, 10-year storm and 25-year storm shall be no greater during construction than for pre-development conditions. However, this regulation shall not be applicable when the development site conforms to all of the following:
        1. The disturbed acreage is less than 5 acres; and
        2. The two-year peak discharge for the disturbed condition, for all points of discharge, is less than 10% of the peak discharge from the contributing watershed as measured at the nearest receiving watercourse.
    2. Exemptions
      The stormwater runoff control requirements do not apply to sites with any of the following conditions.
      1. The development complies with the stormwater control master plan approved for its drainage basin.
      2. The increase in peak stormwater runoff between pre-development and post-development conditions for the two-year and 10-year and 25-year storms is 10% or less at each point of discharge.
      3. The maximum built-upon area coverage of the lot, including any existing built-upon area surfaces, is no more than 10% and the remaining pervious portions of the lot are utilized to convey and control the stormwater runoff of the lot to the maximum extent practical. In the that the site is subsequently subdivided, reduced by recombination or the built-upon area is equal to or exceeds 15% the site may no longer be exempt.
      4. Compliance with Sec. 9.2.2.E.1. above, would result in greater adverse downstream impact, such as local flooding, as determined by City approved engineering studies.
      5. Compliance with the 10-year storm and 25-year storm runoff limitations in Sec. 9.2.2.E.1. above results in no benefit to current and future downstream development, as determined by City-approved engineering studies.
    3. Additional Runoff Controls
      The City may require the installation of stormwater runoff control measures for projects without any stormwater measures present when the benchmarks contained in the subsections a. through d. below are applicable. The City reserves the right to require additional stormwater runoff control measures for projects which are compliant with Sec. 9.2.2.A or Sec. 9.2.2.E.1. above, if stormwater runoff from the site could cause adverse effects on other properties including, without limitation, public streets, greenways and utility easements.
      1. As part of an application for rezoning, subdivision or site plan for sites at or upstream of documented structural flooding cases, the applicant shall submit a stormwater impact analysis to the Engineering Services Director.
      2. This requirement does not extend to sites initially zoned and added to the territorial coverage of as a result of annexation, extraterritorial jurisdictional expansion or otherwise or application of any overlay district.
      3. The stormwater impact analysis shall look at the flood level differences between pre-development and post-development conditions for the 25-, 50- and 100-year storm events. If the analysis shows an increase greater than 0.04 feet between pre-development and post-development flood levels at the site of structural flooding then mitigation to predevelopment flood conditions will be required to prevent further damage to the affected property.
      4. In the case where the area of the subject property is less than 5% of the drainage area, measured to the location of the documented structural flooding, then this analysis shall not be required.
      5. In the event flood levels are increased, then the affected property owners will be notified in writing of any increase by the applicant.
  6. Preservation of Open Space Areas
    1. Open Space Areas Preserved
      1. Areas designated on approved stormwater control plans as open space to be used for complying with this Article shall be preserved and protected.
      2. The only activities allowed in designated open space areas are those activities allowed by the approved stormwater control plan or allowed in riparian surface water buffers under Title 15A North Carolina Administrative Code Article 2B, section .0233, as amended from time to time. Determinations required by the North Carolina Administrative Code shall be made by the City.
      3. No work in open space areas shall proceed without a written protected watercourse buffer permit from the City.
      4. Permanently protected undisturbed open space areas identified on stormwater control plans shall be recorded on plats recorded with the County Register of Deeds and clearly delineated with a fence.
    2. Exchange of Open Space Areas
      Open space areas may not be subdivided or conveyed by the owner. However, nothing in this section shall prevent the mortgaging and hypothecating of open space areas; provided the mortgage applies to all portions of the tract and not just the open space areas, the mortgagee is informed that the open space areas are used for complying with the requirements of the Article and the rights of the mortgagee are subordinated to the rights of any property owner association and its members. Furthermore, nothing shall prevent the exchanging of open space areas for other properties when all of the following are met:
      1. If the open space area is owned by a homeowners' association, written notice of the exchange is given to each member of the association except in cases where the exchange is done to eliminate an encroachment;
      2. After the notice is given, if required, the owner of the open space area approves the exchange;
      3. The exchanged properties and other considerations are of like value and utility
      4. The acreage and configuration of the remaining open space area including real property to be received in such exchange equal or exceeds the requirements of the City Code; and
      5. The exchange is approved by the Engineering Services Director.
  7. Maintenance of Stormwater Control Measures and Devices
    1. General Requirements
      1. The land owner or person in possession or control of the land shall maintain all on-site stormwater control facilities and all open space areas required by the approved stormwater control plan unless those facilities and open space areas are accepted for maintenance by a governmental agency.
      2. The land owner entitled to the exclusive use of an off-site drainage easement for one or more stormwater control facilities not accepted for maintenance by a governmental agency shall maintain said stormwater control facilities.
    2. Maintenance Covenant
      For off-site stormwater control facilities and all other stormwater control facilities which serve more than 1 lot that are not accepted for maintenance by a governmental agency, the developer shall execute and record with the local county register of deeds office a maintenance covenant. The maintenance covenant shall be on an approved City form, with the contents described below.
      When a stormwater control facility benefits a lot owned by a unit of government, alternate compliance to the Maintenance Covenant may be allowed. This alternate compliance must be in the form of a written agreement and must, to the satisfaction of the Engineering Services Director, address maintenance responsibilities, cost sharing, the City’s right to assess the property, and rights of access to the City. The alternate compliance described herein shall not relieve any lot owner of any other applicable provisions of this UDO.
      1. Location of Stormwater Control Facilities and Drainage Easements
        1. A description of portions of property where stormwater control facilities are located as well as a description of the location of all private drainage easements conveying stormwater to and from the development to the facilities.
        2. A process for relocating private drainage easements, with any relocation to require the prior written consent of the City.
      2. Easement Rights of Lot Owners
        A statement that owners of properties that will be served by the stormwater control facilities are:
        1. Granted perpetual, irrevocable and non-exclusive easement rights and privileges to use, construct, install, inspect, replace, reconstruct, repair and maintain those stormwater control facilities including the right to access those stormwater control facilities, private drainage easements and other portions of the development as reasonably necessary to perform the granted easement rights; and
        2. The granting of perpetual, irrevocable and non-exclusive easement rights and privileges to transport, store and discharge stormwater to and from the stormwater control facilities.
      3. City Easement/Right of Entry/No City Responsibility
        1. i. A grant from the developer, the association (if any) and the lot owners to the City of a permanent non-exclusive irrevocable easement over the lots, stormwater control facilities and private drainage easements for inspection, maintenance, repair, construction, installation, re-construction, replacement and other work on, in and over the stormwater control facilities.
        2. A grant from the developer, the association (if any) and the lot owners to the City of a permanent, irrevocable, nonexclusive right of ingress, egress and regress over and across all public or private easements on the property and through all access easements benefitting the developer, association (if any) and the lot owners through any adjacent properties, including but not limited to private roads, for inspection, maintenance, repair construction, installation, reconstruction, replacement and other work on the stormwater control facilities. The rights granted to the City shall include employees, agents and contractors of the City of Raleigh. The grant of these rights does not obligate the City to exercise them or to take any other action.
      4. Stormwater Operations and Maintenance Manual and Budget
        A stormwater operations and maintenance manual and budget conforming to Sec. 9.2.2.D.2. shall be attached to and incorporated into the maintenance covenant as an exhibit.
      5. Insurance
        The party responsible for maintenance of the stormwater control facilities shall, as part of the routine costs and expenses of maintaining any stormwater control facility, procure and maintain in full force and effect liability insurance in an amount not less than $1,000,000 of coverage.
      6. Standards of Maintenance for Stormwater Control Facilities
        A statement that stormwater control facilities shall be maintained in accordance with the attached stormwater operations and maintenance manual and budget and at all times, the stormwater control facilities shall comply with all applicable laws, ordinances, regulations, rules and directives of governmental authorities and that the stormwater control facilities shall perform as designed.
      7. Responsibility for Stormwater Control Maintenance
        1. A statement that the property owners' association or a designated commercial lot owner, shall be responsible for all stormwater control facilities in accordance with the attached stormwater operations and maintenance manual and budget.
        2. A statement that the failure to maintain any stormwater control facility in accordance with the terms of the maintenance covenant and this UDO is a violation of the City Code, potentially subjecting each lot owner subject to the maintenance covenant to significant daily civil penalties and other enforcement actions.
      8. Stormwater Control Facilities Maintained by an Association
        1. If a property owners' association is delegated maintenance responsibilities for the stormwater control facilities, then membership into the association shall be mandatory for the owner of each parcel served by the facility, such membership shall be appurtenant to the parcel and shall run with ownership of the parcel.
        2. The property owners' association shall have the power to levy assessments for the operation and maintenance of the stormwater control facilities and all unpaid assessments levied by the association shall become a lien on the individual parcel.
        3. The calculation of the assessment charge shall be set forth in a subsequent recorded document.
        4. Any property owners’ association responsible for maintenance of stormwater control facilities shall be established in accordance with N.C. Gen. Stat., Chapter 47C and Chapter 47F and the property owners’ association declaration (or equivalent) shall conform to all applicable provisions of the City Code.
        5. The common expenses of the property owners' association shall include, without limitation, costs and expenses for operation and maintenance of stormwater control facilities, all costs for insurance premiums and any other costs listed in the stormwater operations maintenance manual and budget.
      9. Stormwater Control Facilities Maintained by a Commercial Lot Owner
        1. If a commercial lot owner is responsible for the maintenance of the stormwater control facilities, said owner is responsible for making all repairs and replacements of the stormwater control facilities in accordance with the construction drawings approved by the City.
        2. Each owner of a parcel served by the stormwater control facility shall be subject to an assessment charge levied by the designated responsible lot owner.
        3. The assessment charge shall include, without limitation, the actual costs for repairing and maintaining the stormwater control facility, all costs for insurance premiums associated with the stormwater control facility, all costs of required inspections of the stormwater control facility and any other costs listed in the stormwater operations maintenance manual and budget.
        4. The calculation of the assessment charge shall be set forth in a subsequent recorded document.
        5. Any assessment charge levied against a lot and remaining unpaid for a period of 30 days after the payment due date shall be delinquent and shall constitute a default of this covenant entitling the lot owner responsible for maintenance of the stormwater control facilities to bring an action at law against the defaulting party plus interest charges, together with all costs and expenses of collection incurred, including, without limitation, court costs and reasonable attorney fees actually incurred.
        6. Each parcel owner served by the stormwater control facility shall have the right to maintain, repair and replace the facility if, after 45 days written notice, the commercial lot owner responsible for maintenance, repair and replacement fails to faithfully discharge its responsibility.
        7. The parcel owner performing any maintenance or repair of the facility shall have the same rights as the designated commercial lot owner to assess all other parcels served by the stormwater control facility.
        8. At any time, the commercial lot owner responsible for the maintenance of stormwater control facility may assign its responsibilities and rights to a property owners’ association established in accordance with N.C. Gen. Stat., Chapter 47C and Chapter 47F. In such instance, the owners of the parcels served by the stormwater control facility shall be members of the property owners’ association.
      10. City Right to Maintain and Repair Stormwater Control Facilities and City’s Right of Reimbursement
        1. If the stormwater control facilities are not performing adequately or as intended or are not properly maintained or replaced, the City, in its sole discretion, may, after written notice sent to the lot owners and any association, enter the development and perform such construction, installation, repair, reconstruction, replacement and maintenance of the stormwater control facilities as is necessary to remedy the situation.
        2. If the City undertakes the activities listed above, the City shall be fully reimbursed for its costs of inspecting, monitoring, designing, constructing, repairing, reconstructing, replacing and/or installing the stormwater control facility or facilities. Such costs shall include the City’s costs of administration, overhead, contracting and public advertising.
        3. In addition to any other rights the City has to be reimbursed for its costs, the City may levy an assessment against each lot served by the noncompliant stormwater control facility. No assessment will be levied by the City without prior notice to affected lot owners. Any unpaid assessment levied by the City shall be, as allowed by law, a lien against the delinquent lot.
      11. City’s Right To Private Assessments
        1. In addition to all of the remedies set forth herein, if the City has not been fully repaid for the work the City performed on any stormwater control facility owned, in fee or easement, by either a property owners' association or a commercial lot owner with the power to assess lot owners for maintenance of the stormwater control facility, the property owners' association and the private commercial lot owner shall assign to the City their right to receive common expense assessments, including stormwater assessments.
        2. The association and private commercial lot owner shall designate and appoint the City as attorney in fact for the expressed and limited purpose of assessing and pursuing collection of such unpaid reimbursement owed to the City.
        3. No assignment of assessment rights shall become effective without 60 days prior written notice to the applicable private commercial lot owner, property owners' association and its members.
      12. Action for Specific Performance
        1. That, recognizing the consequences to the City of noncompliance with the obligations of the maintenance covenant, the City shall have the right to seek, in any court of appropriate jurisdiction, judicial action for specific performance of any of the obligations and remedies established in this maintenance covenant.
        2. The rights of the City within the maintenance covenant shall not limit any other remedies or enforcement options available to the City under the maintenance covenant, the City Code or State law.
      13. No Public Adoption
        1. A statement that the City’s exercise of its rights under this maintenance covenant, its abatement of public nuisance or its repair of unsafe structures shall not constitute adoption of any stormwater control facility by the City.
        2. A statement that the legal authority of the City is not intended to impede or prohibit the property owners' association or lot owners from taking all necessary actions to inspect, maintain, repair, replace and reconstruct stormwater control facilities so that they function safely, perform the function for which they were created and comply with the provisions of this maintenance covenant and the City Code.
      14. City’s Right of Non-Action
        A statement that the maintenance covenant shall not obligate the City to monitor, maintain, repair, reconstruct, install or replace any stormwater control facility or measure and that the City shall not be liable for the condition or operation of stormwater control facilities.
      15. Governmental Functions; Superseding Regulations
        1. A statement that nothing contained in the maintenance covenant shall be deemed or construed to, in any way, stop, diminish, limit or impair the City from exercising or performing any regulatory, policing, legislative, governmental or other powers or functions.
        2. A statement that the maintenance covenant shall not restrict or prevent the application of later adopted ordinances or other enactments which may supplement or supersede the provisions of the maintenance covenant.
      16. Joint and Several Liability
        1. A statement that each lot owner served by one or more stormwater control facilities is jointly or severally responsible for repairs, replacement and maintenance of the stormwater control facilities, including payment of any unpaid ad valorem taxes, public assessments for improvements and unsafe building and public nuisance abatement liens charged against the stormwater control facility and/or the lots served by the facility, including all interest charges thereon, together with all cost and expenses of collection incurred, such as, without limitation, court costs and attorney’s fees incurred.
        2. The maintenance covenant shall establish a right of contribution in favor of each owner who pays more than the owner’s pro rata share of costs and expenses against all other owners whose real property is served by the same stormwater control facility.
        3. A statement that pro rata sharing may be established either by maintenance assessment provisions for stormwater control facilities in subsequently recorded documents or by dividing the acreage of such owner’s portion of the real property served by the stormwater control facilities by the total acreage of the portion of the development served by the same stormwater control facility when no maintenance assessment covenants apply to the property.
        4. A statement that failure to maintain the stormwater control facilities in accordance with the terms of the maintenance covenant and the City Code is a violation of the City Code potentially subjecting each parcel owner subject to the maintenance covenant to significant daily civil penalties and other enforcement actions.
      17. Permanently Protected Undisturbed Open Space Areas
        A statement that within permanently protected undisturbed open space areas there shall be no land-disturbing activity, no tree disturbing activity, no placement of impervious surface, no removal of vegetation, no encroachment or no construction or erection of any structure shall occur except in accordance with a permit first being issued by the City.
      18. Severability
        The sections, paragraphs, sentences, clauses and phrase of the maintenance covenant are severable and if any phrase, clause, sentence, paragraph or section of the maintenance covenant is declared invalid by a valid judgment, order or decree of any court of competent jurisdiction, such invalidity shall not affect the remaining phrases, clauses, sentences, paragraphs and sections of the maintenance covenant.
      19. Completion and Recording of Maintenance Covenant Form
        1. The maintenance covenant shall be binding on all current and subsequent owners of property served by the stormwater control facilities. To protect the interests of the City and the public at large, any existing deed of trust, mortgage or lien encumbering the property, other than tax liens for the current tax year or governmental improvement assessments, must be subordinated to the maintenance covenant.
        2. Prior to recording the maintenance covenant, the attorney who prepared the maintenance covenant shall certify in writing to the City that the maintenance covenant was prepared on a City form that contains all the contents required by Sec. 9.2.2.G.2. Certifications shall be on forms approved by the City and shall accompany the maintenance covenant forms.
        3. The maintenance covenant shall be recorded with the local county register of deeds office immediately following the recording of any new lot served by the stormwater control facility or prior to the issuance of any building permit for any existing lot except for improvements made pursuant to Chapter 8. Subdivision & Site Plan Standards The maintenance covenant must be the first encumbrance recorded subsequent to the recording of the subdivision plat.
        4. A recorded copy of the maintenance covenant shall be given to the Engineering Services Department within one business day following recordation. No building permit shall be issued for the property subject to the maintenance covenant until a recorded copy of the maintenance covenant is provided to the Development Services Department.
    3. Payment to Stormwater Facility Replacement Fund
      1. At the time of either recording a subdivision plat or issuance of a building permit for a lot not established by subdivision, whichever event first occurs, the developer shall pay to the City a stormwater facility replacement fund payment, which payment shall equal 24% of the estimated cost of constructing all stormwater control facilities shown on applicable development plans.
      2. The purpose of the stormwater replacement fund is to ensure that adequate funds are available to the City for the maintenance, repair replacement and reconstruction of stormwater control facilities required by this UDO. Funds expended from the stormwater facility replacement fund shall be used only for the repair, maintenance, reconstruction and/ or replacement of stormwater control facilities, together with the costs incurred by the City associated with any work and/or redesign of the facilities.
      3. No funds from the stormwater facility replacement fund shall be used for administration of this fee program. Monies collected from the stormwater replacement fund may be spent for maintenance, repair, reconstruction and replacement of any stormwater control facility required by this UDO and located within the City limits or its extraterritorial jurisdiction.
      4. Payments collected by the City pursuant shall be kept separate from other revenues of the City. Any funds on deposit not immediately necessary for expenditure shall be invested as allowed in N.C. Gen. Stat. §159-30; all income derived shall be deposited in the separate account and may only be used for repair, maintenance, reconstruction and replacement of stormwater control facilities together with the costs incurred by the City associated with any work or redesign of the facilities.
      5. Monies expended from the stormwater facility replacement fund, together with interest, may be recouped by the City from lot owners served by stormwater control facilities maintained, repaired, reconstructed and replaced by the City or its contractors. All recouped monies and interest shall be returned to the stormwater facility replacement fund.
      6. The payment of stormwater facility replacement fees is not intended as a substitute for security to ensure the construction of the facilities, which security may be required at such point in the development process as specified in City ordinances and policies.
  8. Annual Inspections and Inspection Report Required
    The responsible party for maintenance of the stormwater control measures or devices must submit an annual inspection report from a qualified registered North Carolina professional engineer, surveyor or landscape architect to the Engineering Services Department. The inspections report shall contain all of the following:
    1. The name and address of the land owner;
    2. The recorded book and page number of the lot of each required stormwater control facility and required open space area;
    3. A statement that an inspection was made of all required stormwater control facilities and open space areas;
    4. The date of the inspection;
    5. A statement that all inspected stormwater control facilities and open space areas are performing properly and are in compliance with the approved stormwater control plan, the applicable maintenance manual required by Sec. 9.2.2.D.2. and the Raleigh Stormwater Control and Watercourse Buffer Manual. No sampling of pollutant loading is required as part of the inspection;
    6. The original signature and seal of the engineer, surveyor or landscape architect; and
    7. All inspection reports shall be on forms supplied by the City. An original inspection report shall be given to the Development Services Department beginning from the date of the as-built was first certified under Sec. 9.2.2.D.3. and each year thereafter on the anniversary date of the certification.